Guest Commentary: Judicial restraint: A local case illustrates point

Every election cycle, we voters hear about 'judicial philosophies', as candidates for office promise not to appoint 'judicial activists' who will "legislate from the bench." The Press last week editorialized about a case that I helped decide, one that nicely illustrates what judicial restraint (and activism) is all about ("Establish protections," Sept. 19).

The case involved a 5-year-old child who broke his leg at a local indoor play center. His father had signed a 'parental waiver,' promising not to sue the business if an injury occurred. But the family went to court seeking money damages anyway.

The question a panel of our Third District Court of Appeals faced was whether to uphold the waiver and dismiss the lawsuit. Instead, we found the waiver invalid and allowed the action to proceed.

As I explained in my concurring opinion, that wasn't the result I would have preferred. I wrote that our decision "undermines the authority of parents to make judgments and decisions regarding the activities in which their children participate." The results, I predicted, would be more lawsuits and increased expenses for anyone providing recreational or other services for children (with those costs passed on to participants).

Ultimately, I worried that this will lead to many of those services simply becoming unavailable, limiting the options families have to choose from. So, I thought the rule that a number of other states have adopted, upholding parental waivers and thus prohibiting this kind of lawsuit, was the better approach.

I felt bound to join my colleagues in finding the parental waiver invalid, however, because of a Michigan Supreme Court case from 1987.

That case did not directly decide the question we were faced with. However, it was close enough that we couldn't responsibly 'get around it' in some fashion to find the waiver valid. To do so, in my view, would have been one form of 'judicial activism' -- ignoring applicable precedents to shape public policy in whatever fashion a judge or court deems to be best. That's a bad approach; the law shouldn't evolve in such a 'fits and starts' fashion. Our democracy is better served if our law develops in a measured and predictable way, even if it takes longer to get to the result we would like.

Moreover, as The Press editorial pointed out, the question we were deciding has significant and far-reaching implications involving parental responsibilities, children's rights and the protection of businesses and other entities like Little League and Girl Scouts. As a former legislator myself, I think the issue should probably best be addressed by the Michigan Legislature. The process of introducing and passing legislation on the issue would provide notice to potentially interested and impacted persons statewide. They could participate in hearings and otherwise promote their viewpoints.

In the end, a new statute could be passed that would accommodate the many perspectives and concerns that surround the question. It could establish clear guidelines and rules for the courts to follow and enforce. That approach is better than a court making a public policy decision on this important issue piecemeal, with the facts of only one isolated case as the test for the practical implications of its decision.

As this case illustrates, the sum and substance of judicial restraint is really quite simple: judges must know their place. In our three-branched government, we have an important job, but it is limited. We must follow the law as it has been handed down to us by superior courts and by the people's representatives.

Occasionally, as in this case, doing so will require that we don't decide the questions we face the way we would 'like.' But that is much better than overstepping our boundaries in a manner inconsistent with the Constitution we have sworn to uphold.

-- Justice Richard A. Bandstra is a member of Michigan's Third District Court of Appeals. His term expires Jan. 1, 2009.